Judgment :- The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 01.07.2003, made in M.C.O.P.No.156 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore, awarding a compensation of Rs.1,12,300/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2. Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to set aside the said award and decree passed by the Tribunal. 3. The short facts of the case are as follows: The petitioner is aged about 29 years and he is working as a Beedi worker-cum-Milkman and earning a sum of Rs.3,000/- per month. On 26.10.1997, at about 5.00 p.m. he was waiting for the bus at Alamelumangapuram bus stop at the southern end of the mud road. At that time, the first respondent drove the lorry bearing registration No.TN09 Z5117 in a rash and negligent manner, from the western side, and dashed against the petitioner causing injuries. The petitioner sustained fracture on right humerus, laceration over the right foot, head and all over the body. Immediately, he was admitted in hospital for treatment. After the accident, he is unable to do his work. Hence, he has claimed a compensation of Rs.2,00,000/- with interest and costs from the first and second respondents, who are the owner and insurer of the said lorry involved in the accident, under Section 166 of the Motor Vehicles Act. 4. Regarding the said accident, a criminal case has been registered as against the driver of the lorry at the Sathuvachari Police Station in Crime No.471/1997 under Sections 279 and 338 of I.P.C. 5. The second respondent, in his Counter, has resisted the claim denying the averments in the claim regarding the age, income and occupation of the petitioner as also the manner of the accident, nature of injuries, period of treatment, disability and medical expenses. Further, the respondent has submitted that the petitioner should also prove that the said lorry had been covered under a valid policy of insurance with them and that it was operated with a valid permit, F.C., R.C, I.C., taxation etc., at the time of accident. Further, the respondent has submitted that the petitioner should also prove that the said lorry had been covered under a valid policy of insurance with them and that it was operated with a valid permit, F.C., R.C, I.C., taxation etc., at the time of accident. It has also been submitted that the said lorry was driven carefully by the driver of the lorry and that the accident was caused only due to the negligence of the petitioner. As such, the respondent has submitted that the claim is excessive and has to be dismissed with costs. 6. The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Who is responsible for the accident? (ii)Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation, which he is entitled to get? (iii) Who is liable to pay the compensation? 7. On the petitioners side, the petitioner was examined as PW1 and the Doctor, who assessed his disability was examined as PW2 and six documents were marked as Exs.A1 to A6. On the respondents side, no witnesses were examined and no documents were marked. 8. Ex.A1 is the copy of the FIR. On scrutiny of the Ex.A1, it is seen that the complaint has been given by the petitioner himself. He has stated in the complaint that on 26.10.1997, at about 05.00 p.m in the evening, while he was waiting at Alamelumangapuram bus stop, waiting for a bus, to proceed towards Sathuvachari, the respondents lorry bearing TN09 Z5117, coming from Vellore on the Vellore-Arcot road, driven at a high speed and in a rash and negligent manner by its driver, had dashed against him, and that as a result of this accident, he had fallen down and the bone of the upper half of his right forearm had been broken. PW1, in his evidence, had given the same version of the accident as he had given in the complaint and confirmed that the accident had been caused only due to the rash and negligent driving of the driver of the first respondent. Even during cross-examination, the PW1 has denied the suggestion put forward by the respondents side that the accident happened while he was crossing the road. 9. Even during cross-examination, the PW1 has denied the suggestion put forward by the respondents side that the accident happened while he was crossing the road. 9. On an examination of the Motor Vehicle Inspectors Report marked as Ex.A3, it is seen that the accident had not occurred due to any mechanical defects in the said lorry. The investigating agency investigated, on the basis of Ex.A1 and filed a Charge Sheet as against the first respondents driver. The first respondent driver had also pleaded guilty before the Criminal Court. The Judgment in STC No.1210 of 1997 has been marked as Ex.A4. It is pertinent to note that the first respondent driver has not been examined before the Tribunal. As such, the Tribunal on considering that no contra-evidence has been produced to counter the oral evidence of PW1 and on consideration of Exs.A1, A2 and A3 held that the accident had occurred only due to the rash and negligent driving of the lorry by the first respondent driver. 10. In the above said accident, the petitioner has stated that he had sustained injury on his right hand and leg and has marked Ex.A2, the Wound Certificate. On scrutiny of the Ex.A2, it is seen that the petitioner has sustained five injuries and that the injury No.1, which is the closed comminuted fracture in his mid shaft right humerus is grievious in nature and that the other four injuries are simple in nature. 11. The Doctor, who had assessed the disability of the petitioner, was examined as PW2. The PW2, in his evidence, has stated that the fracture sustained by the petitioner in his right hand had shortened the size of the right arm and restricted the movements of his right hand and hence he has certified that the disability sustained by the petitioner on this count was 30% and in support of this, he had marked Ex.A5, the Disability Certificate and Ex.A6, the Xray. 12. The Tribunal, on scrutiny of evidence of PW2 and on examination of Exs.A2, A5 and A6 were of the opinion that the petitioner has sustained five injuries and that only one of the injuries was grievious in nature and that the other four were simple in nature. 12. The Tribunal, on scrutiny of evidence of PW2 and on examination of Exs.A2, A5 and A6 were of the opinion that the petitioner has sustained five injuries and that only one of the injuries was grievious in nature and that the other four were simple in nature. The Tribunal held that as the fracture in midshaft right numerus has shortened the length of the petitioners right hand thereby restricting the movements of his right hand, the petitioner has sustained disability. But, the Tribunal were not inclined to accept the disability at 30% and held that the petitioner had sustained only 15% disability in the accident, and awarded a compensation of Rs.40,000/-to the petitioner under the head of disability. The Tribunal further granted an award of Rs.5,000/-to the petitioner under the head of pain and suffering. Though the petitioner has stated in his evidence that he was employed as a Beedi worker and earning a sum of Rs.100/-per day, the Tribunal on considering his occupation fixed the notional income of the petitioner as Rs.2,000/-per month and his annual income as Rs.24,000/-. Adopting a multiplier of 18, as was relevant to the age of the petitioner, which was 29 years at the time of accident, the Tribunal assessed the loss of earning power of petitioner as Rs.24,000/- X 18 X 15/100 = Rs.64,800/-. As no documents were produced by the petitioner in support of medical expenses, the Tribunal did not give any award to the petitioner as compensation under the head of medical expenses. The Tribunal awarded a sum of Rs.2,500/-as compensation to the petitioner under the head of nutrition and transport expenses. In total, the Tribunal awarded a compensation of Rs.1,12,300/-to the petitioner. 13. The Tribunal, on considering that the vehicle involved in the accident was owned by the first respondent and insured with the second respondent, held that both the respondents are liable to pay the compensation amount to the petitioner. 14. The Tribunal directed the respondents to deposit the award of Rs.1,12,300/-together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.156 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore, within a period of two months from the date of its Order. Further, after such deposit was made, the petitioner was permitted to withdraw 50% of the award amount and the balance amount was to be deposited in a nationalised bank for a period of three years and the petitioner was permitted to receive interest on the balance amount deposited, once in three months, directly from the bank. The Advocate fees was fixed at Rs.5,246/-. The petitioner was directed to pay the Court fee of Rs.495.50 within a period of one week from the date of its Order. The respondents were directed to pay the cost of Rs.1541.50/- to the petitioner. 15. The learned counsel appearing for the appellant in his appeal has contended that the Lower Court had grossly erred in awarding a sum of Rs.64,800/- for alleged disability of 15%. It has also been pointed out that in the absence of any proof of actual depletion in income earned by the claimant, the award granted is too high. Further, it has been contended that the grant of an award of Rs.40,000/- separately for permanent disablement is also excessive. As such, it has been contended that the award of Rs.1,12,300/- granted by the Lower Court as compensation to the claimant is not sustainable in law and has to be set aside. 16. Further, it has been contended that the grant of an award of Rs.40,000/- separately for permanent disablement is also excessive. As such, it has been contended that the award of Rs.1,12,300/- granted by the Lower Court as compensation to the claimant is not sustainable in law and has to be set aside. 16. The learned counsel appearing for the appellant in support of his contention has cited the following Judgments made in 2006 (4) CTC 433 , High Court of Madras, Cholan Roadways Corporation Ltd., v. Ahmed Thambi, the relevant head notes of which are as follows: "Motor Vehicles Act, 1988, Section 168 ‘Power of Motor Accident Claims Tribunal to fix compensation’ Whether compensation could be awarded separately on account of permanent disability and on account of loss of earning capacity ‘Compensation to be awarded by Tribunal under any head should be adequate and reasonable to achieve Statutory goal’ Approach of Tribunal in awarding compensation should be on larger perspective of justice, equity and good conscience and technical issues should be eschewed ‘Quantum of damages should be in accordance with injury and injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses’ It is open to Tribunal to award different sums of damages higher than those claimed under particular head of damage so long as Tribunal does not exceed total amount claimed’ Damages awarded for non-pecuniary damages for pain, suffering and loss of amenities cannot be reduced even if quantum of pecuniary damages payable is high ‘Motor Accidents Claim Tribunal should itemise award under each of head namely Pecuniary Losses and Non-pecuniary Losses “ Under head Non-pecuniary Losses Tribunal shall consider (a) pain and suffering; (b) loss of amenity; (c) loss of expectation of life, hardship, mental stress, etc.; and (d) loss of prospect of marriage “Under head Pecuniary Lossess, Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning if any from date of accident till date of trial When loss of earning capacity is compensated as also non-pecuniary losses under (a) to (d) permanent disability need not be separately itemized." 2005 ACJ 1483 , High Court of Judicature at Madras, United India Insurance Co. Ltd. v. Veluchamy, the relevant head notes of which are as follows: "Motor Vehicles Act, 1988, section 168 (1) ‘Just compensation’ Award of compensation more than claimed ‘Claimant sustained injuries resulting in permanent disablement and he assessed compensation at Rs.10,97,500 but restricted his claim to Rs.5,00,000 in order to seek court-fee exemption Appellate court assessed compensation at Rs.7,00,000, Whether compensation more than claimed can be awarded Held: yes. Motor Vehicles Act, 1988, sections 173, 149 (2) and 170 ‘Motor insurance Appeal’ Quantum, Defences available to insurance company’ Insurance company had obtained permission of Tribunal under section 170 ‘Whether insurance company is entitled to challenge the award on quantum’ Held: yes. Quantum ‘Injury’ Principles of assessment discussed. The principles are: (a) In all cases of injury or permanent disablement multiplier method cannot be mechanically applied to ascertain the future loss of income or earning power. (b) It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power, etc. and if so, to what extent? (c) (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle for the rest of his life, in that event loss of income or earnings may be ascertained by applying the multiplier method as provided under Second Schedule to the Motor Vehicles Act, 1988. (2) Even so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income. (d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident." 17. The learned counsel appearing for the first respondent argued that the claimant is a Beedi worker and is the breadwinner of his family. Due to the accident, his right arm bone had been fractured and consequent to this his arm has been shortened. As such, he is unable to carry out his beedi work. The learned counsel appearing for the first respondent argued that the claimant is a Beedi worker and is the breadwinner of his family. Due to the accident, his right arm bone had been fractured and consequent to this his arm has been shortened. As such, he is unable to carry out his beedi work. The learned counsel appearing for the first respondent further submitted that the claimant had sustained five injuries in the said accident and all of them are grievious in nature. The claimant was 29 years at the time of accident and there is absolutely no possibility of restoring the normal strength to his right hand. 18. Considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and scrutiny of findings of the Tribunal, this Court is of the view that the Tribunals award of Rs.64,800/- for loss of earning power and the award of Rs.40,000/-for permanent disability are contradictory to each others and hence the Court restructures the award granted by the Tribunal as follows: 1. For disability of 30% sustained by the petitioner, this Court awards a sum of Rs.60,000/-(taking Rs.2,000/- as compensation for 1% disability), since the claimants age was only 29 years. 2. This Court awards a sum of Rs.10,000/-to the claimant under the head of pain and suffering. 3. The Tribunal awarded a sum of Rs.2,500/-for medical expenses, transport and nutrition. This Court awards a sum of Rs.5,000/-to the claimant under the head of medical expenses; Rs.5,000/- under the head of nutrition and Rs.2,000/-under the head of transport expenses. 4. Considering that the claimant has fractured his right hand and considering that the claimant was employed as a beedi-worker, this Court awards a sum of Rs.9,000/- as compensation for loss of income suffered by the claimant during the period of treatment. 19. As such, this Court awards a sum of Rs.91,000/- as compensation to the claimant together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. The Tribunal awarded a sum of Rs.1,12,300/-as compensation in M.C.O.P.No.156 of 1998, dated 01.07.2003 and this Court scales down the award to Rs.91,000/- as it is found to be fair and equitable in the circumstances of the case. 20. The Tribunal awarded a sum of Rs.1,12,300/-as compensation in M.C.O.P.No.156 of 1998, dated 01.07.2003 and this Court scales down the award to Rs.91,000/- as it is found to be fair and equitable in the circumstances of the case. 20. At the time of admission, this Court imposed a condition on 09.02.2005 on the appellant/the Oriental Insurance Co., Ltd., to deposit the entire award amount into the credit of the M.C.O.P.No.156 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore. Thereafter, this Court by its Order dated 29.04.2005, permitted the claimant to withdraw 50% of the award amount. Further, this Court directed the Tribunal to re-invest the balance award amount as fixed deposit in any nationalised bank, initially, for a period of three years and renewable thereafter, pending appeal. 21. As the accident happened in the year 1997, it is open to the claimant to withdraw the balance amount together with interest lying in the credit of the M.C.O.P.No.156 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore, after filing necessary payment out application in accordance with law, subject to deduction of withdrawal of any earlier payments, as per the order of the Court. 22. The appellant is at liberty to withdraw the balance compensation deposited by them into the credit of the M.C.O.P.No.156 of 1998, on the file of the Motor Accident Claims Tribunal, Principal District Court, Vellore, as per this Court Order, after observing necessary formalities of the Court. 23. In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 01.07.2003, in M.C.O.P.No.156 of 1998, passed by the Motor Accident Claims Tribunal, Principal District Court, Vellore, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.